Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Catching Up With NCLB Rulings

With school coming back into session in most of the country, it's time to catch up with a couple of court decisions under the No Child Left Behind Act that were released over the summer. (I was traveling or otherwise out-of-pocket when these decisions came out.)

Both are from California, with one from a federal appeals court and the other from a state appellate court.

Highly Qualified Teachers
In Renee v. Duncan, a panel of the U.S. Court of Appeals for the 9th Circuit July 23 upheld a federal regulation under the NCLB law that permits teachers participating in alternative-certification programs to be considered "highly qualified" under the federal education law.

A panel of the San Francisco-based 9th Circuit ruled in a challenge to the regulation brought by two community groups and several students and their parents. The plaintiffs argued that the regulation was inconsistent with NCLB and that California had allowed school districts to hire thousands of alternative-route participants and place them in low-income and minority areas.

A federal district court granted summary judgment in favor of Secretary of Education Arne Duncan, who is defending a regulation issued by his predecessors. In its ruling last month, however, the appeals court panel ruled 2-1 that the plaintiffs lacked standing to bring the suit because there was no guarantee that a revocation of the regulation would "redress" the injuries alleged in the suit.

In other words, the court said there was nothing to keep California from counting alternative-certification teachers as highly qualified even in the absence of the federal regulation.

"It is undisputed that NCLB leaves to the states discretion over which teachers constitute 'highly qualified teachers' because 'full state certification' is purely a matter of state law," the 9th Circuit court said. "Therefore, [the plaintiffs] have not demonstrated that it is likely the injury they complain of would be redressed by a favorable decision."

In a dissent, U.S. Circuit Judge William A. Fletcher said it was unlikely that California would change its definition of highly qualifed teachers absent the regulation, and that in his view the plaintiffs meet the requirements for standing because a ruling throwing out the regulation would result in changes to the hiring and assignment of alternative-route teachers.

Testing of English-Language Learners
In a decision a few days later, a state appellate court in California rejected a lawsuit brought by nine school districts against the state, the state board of education, and others over the state's system of testing students who are learning English.

The plaintiffs argued in their suit that the state's program of testing all students, including English-language learners, in English was inconsistent with the NCLB law's requirement that such tests be "valid and reliable."

The school districts "have urged there must be a trial, with a battle of experts and the like," the court said. "Rather than assuming the role of deferential reviewer of the agency's actions, the court would become the official second-guesser on the issue of how to assess LEP students under the NCLB [act], tasked with the job of figuring out whether the tests are valid and reliable, etc. The NCLBA confers discretion on the participating states to do this very thing and here the State Board, exercising its quasi-legislative powers, undertook to do this job."

* * * *

These two rulings hardly shake up the status quo. They generally uphold the power of the U.S. Department of Education to promulgate regulations interepreting the NCLB law, and they uphold the power of states to put their own stamp on testing policies under the federal law.

One of the biggest legal challenges to the No Child Left Behind Act remains pending before the full U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The 6th Circuit heard arguments last December (my blog post here) in a challenge to NCLB backed by the National Education Association, which contends in its suit that the federal law imposes unfunded mandates on school districts in violation of the statute's own language.

It's unclear when the 6th Circuit will issue its ruling.

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